CHAMBERS APPLICATIONS - Law Society of...

CHAMBERS APPLICATIONS

Revised August 2007 Not to be used or reproduced without permission - Saskatchewan Legal Education Society Inc.

Saskatchewan: Bar Admission Program Civil Procedure - Chambers Applications


ACKNOWLEDGMENT

Saskatchewan Legal Education Society Inc. gratefully acknowledges the contribution of Madame Justice Darla Hunter and Brian Scherman for

their work in preparation of the original course materials with updates by Mr. Justice I. D. McLellan and W. Robert Waller

and, most recently, by the lawyers of Olive Waller Zinkhan & Waller, Regina.

Saskatchewan: Bar Admission Program i Civil Procedure - Chambers Applications


TABLE OF CONTENTS I. ORIGINATING DOCUMENTS ..............................................................................................1 A. FORM OF CHAMBERS APPLICATIONS .....................................................................1 B. REQUIREMENTS IN THE RULES OF COURT AND STATUTORY FORMS.....................................................................................................3 1. Time Limits ..................................................................................................................4 2. Filing Deadlines............................................................................................................5 3. Method of Service ........................................................................................................5 4. Provision of Documents and Materials ........................................................................7 C. PREROGATIVE WRITS..................................................................................................7 II. EVIDENCE ON CHAMBERS APPLICATIONS ...................................................................8 A. INTRODUCTION.............................................................................................................8 B. AFFIDAVIT EVIDENCE .................................................................................................8 1. Form of Affidavit .........................................................................................................8 2. Procedure....................................................................................................................10 3. Substance....................................................................................................................10 C. ORAL EVIDENCE .........................................................................................................14 1. Cross-Examination of a Witness Who Will Not Provide an Affidavit ......................14 2. Examination on the Affidavit .....................................................................................16 III. ORDERS.................................................................................................................................17 A. FORM..............................................................................................................................17 B. PROCEDURE .................................................................................................................17 C. EX PARTE ORDERS.......................................................................................................17 D. COSTS.............................................................................................................................18 1. Party and Party Costs..................................................................................................18 2. Interlocutory Proceedings...........................................................................................19 3. Costs of the Day .........................................................................................................19 4. Tariff of Costs.............................................................................................................19 5. Assessment of Costs ...................................................................................................20 PRECEDENTS: MEMORANDUM TO THE JUDGE.........................................................................................P - 1 ORDER......................................................................................................................................P - 3 AFFIDAVITS ............................................................................................................................P - 5 NOTICE OF MOTION............................................................................................................P - 11 ORDER....................................................................................................................................P - 13

Saskatchewan: Bar Admission Program 1 Civil Procedure - Chambers Applications


I. ORIGINATING DOCUMENTS

A. FORM OF CHAMBERS APPLICATIONS

The document used to initiate a Chambers application is either

(a) a Memorandum to the Judge; (b) a Notice of Motion; (c) an Originating Notice; or (d) a specific form prescribed by a statute, depending on the substantive issue and remedy

which you are seeking from the court.

The most commonly used document is a Notice of Motion. Some background on Chambers

applications is useful for understanding which document should be used in each situation.

Historically in England and many of the common law Provinces all actions were commenced by

a Writ of Summons and the pleadings were contained in a Statement of Claim. In Saskatchewan,

all actions are commenced by Statement of Claim except as otherwise provided (Rule 13). In

order to provide for all procedural matters which might need to be determined prior to the trial,

the Rules of Court historically have provided for an interlocutory application which could be

heard before a Chambers judge and disposed of quickly. In most of the common law Provinces,

the document used for such interlocutory applications was a Notice of Motion.

There were, however, situations which did not require a trial with all the usual pre-trial procedures

and viva voce evidence in order to determine the matter, i.e., situations where there was really no

dispute on the facts and it was really a question of law which must be determined by the court. In

such situations, the document which would be used for a summary determination by the court was

the Originating Notice. The attributes of the Originating Notice are similar to a Writ of Summons

in that the document is issued by the court and would be given a separate court file number.

Historically, the Rules of Court described certain situations which would come within the category

of matters appropriate to be brought before the court for determination in this summary manner.

The proceedings which may be commenced by Originating Notice are found in Rule 452 in the

Rules of Court.

2 Saskatchewan: Bar Admission Program Civil Procedure - Chambers Applications


A third category of applications is where it is not necessary to give notice to the other party

before proceeding with a Chambers application. In this category a Memorandum to the Judge

would be the proper document to use (ex parte situations). The ex parte category of applications

can be made pursuant to the authority either in the Rules of Court or under any statute. Ex parte

applications must comply with Rule 441A.

Rule 44lA provides:

441A Ex parte applications shall be by memorandum setting forth: (a) the special provision authorizing the ex parte application; (b) the relief sought; (c) a statement that none of the opposite parties is, to the knowledge of the applicant,

represented by legal counsel; or, setting out the name of legal counsel representing any opposite parties; and

(d) citations of the authorities relied upon, namely; (i) chapters and section numbers of statutes; (ii) rules numbers; and (iii) complete citations of cases with designation of relevant passages.

If making an application pursuant to a statute, check first to see if a statutory form is provided

for the application to the court and, if no statutory form has been prescribed, go to the Rules of

Court to determine the appropriate document for proceeding with the Chambers application.

Almost all Canadian Provinces have maintained the above distinctions and have provided in

their Rules for a separate document for each of the above categories of Chambers applications,

namely, ex parte (Memorandum to the Judge), interlocutory (Notice of Motion), and originating

application (Originating Notice or Notice of Motion).

In 1961, a change was made in the Saskatchewan Rules of Court which provided that both

interlocutory applications and many originating applications to the court would be initiated by

the Notice of Motion. Therefore, in this Province the Notice of Motion does serve this dual

purpose.



B. REQUIREMENTS IN THE RULES OF COURT AND STATUTORY FORMS

Part 38 of the Rules of Court provides for Motions and applications in both Court and Chambers.

The primary rule is Rule 441 which provides that all applications in chambers shall be by

Notice of Motion, except where otherwise specially provided. Accordingly, one may only use an

Originating Notice or an ex parte application where there is specific authority for proceeding in

this way (e.g., Rule 452 provides for Originating Notice; Rule 441(3) provides for ex parte

application).

Rule 441B provides:

441B Every Notice of Motion shall set forth: (a) the precise relief sought; (b) the grounds to be argued, including a reference to any statutory provision or rule to

be relied on; and (c) a list of the documentary evidence to be used at the hearing of the motion.

In addition, Rule 441(2) provides that where any statute provides that an application may be

made to the court or to a judge then that application shall be made by Notice of Motion unless it

is otherwise provided in the statute or the rules. Therefore, whenever a statute authorizes that an

application may be made to the court for a determination, the first step should be to check

whether there is a form prescribed by that particular statute. In the event that there is no

prescribed form, then one should examine the Rules of Court to determine whether there has

been a specific set of rules promulgated for those particular applications. An ex parte

application under a statute could only be made where the statute so provides that the application

may be made ex parte and it is not necessary to give notice to the other side.

Therefore, appropriate originating documents are:

(a) Memorandum to the Presiding Judge - ex parte applications where specifically authorized by the rules or by statute.

(b) Notice of Motion - interlocutory proceeding within an action Rule 441(1). (c) Notice of Motion - originating application pursuant to a statute, Rule 441(2). (d) Originating Notice - proceedings authorized by Rule 452. (e) Statutory Form - where specifically prescribed by statute - Originating Notice. (f) Procedure prescribed by the Rules for specific applications - appeals from the Provincial

Court by Notice of Motion - Rule 474.



1. Time Limits

Notice of Motion - Rule 447 provides that there must be three clear days between the service of

the Notice of Motion and the date named in the Notice for hearing the Motion. The Interpretation

Act, 1995 and Rule 531 define what is meant by clear days, i.e., where the days are expressed to

be clear days, the first and last days are to be excluded in the calculation of time. One must also

be cognizant of Rule 530, which provides that where any time limit is less than six days, then the

time shall not count the days on which the offices are closed. Therefore, in calculating your three

clear days of notice within the meaning of Rule 447, do not count the date of service, the date of

the hearing nor any days when the Court House would be closed. However, Rule 447 also

authorizes an ex parte application to shorten service of the Notice of Motion – a common practice

for parties seeking labour injunctions. Because there is no distinction made in the rules between

an interlocutory Notice of Motion and an Originating Notice of Motion, it would appear that Rule

447 and the ‘three clear days service rule’ apply in both instances.

Originating Notice - Rule 454 provides that there shall be at least 11 days between the service of

an Originating Notice and the day for hearing. Keeping in mind that in calculating time pursuant to

Rules 530 and 531, one may include the days that the offices are closed. Also, the number of days

would be calculated by excluding the day of service but including the day set for the hearing. See

Farmstart v. Dagenais (1983), 31 Sask.R. 81 (Q.B.) to the effect that the phrase “at least” refers to

“clear days”.

Statutory Forms - It may be that where there is a form prescribed by a particular statute, there

will also be sections dealing with time limits and service.

Adjournments - In the event that one is unable to attend on the Chambers date named in the

Motion or for any other reason would want the matter adjourned to a different date, Rule 460(1)

provides that the application may be adjourned with the consent of counsel to a subsequent

Chambers date, and that the Local Registrar is empowered to accept an oral consent to such an



adjournment. Oral consent adjournments will be granted by the Local Registrar up to 10:00 a.m.

of the day before the Chambers hearing. Requests for adjournments after this time must be made

by counsel to the judge in Chambers. Rule 461 provides that the Court may adjourn the

application or Motion from time to time on such terms, if any, as it shall think fit.

2. Filing Deadlines

Originating Notice - Rule 453 provides that a copy of the Originating Notice shall be filed

before service. Although the document is signed by the lawyer commencing the proceeding by

way of Originating Notice, it is counter-signed and sealed at the Local Registrar’s Office.

Following this step, one may serve the Originating Notice on the respondents.

Notice of Motion - There is no requirement that the Notice of Motion be filed before service;

however, Rule 465 provides that the Notice of Motion shall be filed not later than the day before

its return date. Rule 465 reads as follows:

465. The deadline for filing material to be used on a chambers application is: a. 4:00 p.m. Thursday for Monday chambers; b. 4:00 p.m. Friday for Tuesday chambers; c. 4:00 p.m. Monday for Wednesday chambers; d. 4:00 p.m. Tuesday for Thursday chambers, and; e. 4:00 p.m. Wednesday for Friday chambers.

3. Method of Service

Effective January 1, 2003, the existing Rules of Court on service of process were repealed and

replaced in their entirety. The service rules found in Part 3 of the Rules of Court apply to

Chambers applications. Particular attention should be paid to Rules 18 through 33.

Generally, service of a document is effected by personal service, by leaving a copy of the

document with the person to be served. The document commencing a proceeding is deemed to

have been personally served where a person files a defence or takes action in the proceeding.



Service must be accompanied by a request that the person being served sign and return the

completed Acknowledgment without delay, in an enclosed postage pre-paid envelope. If the person

to be served neglects or refuses to sign and return the completed Acknowledgement of Service

without delay, she will bear all costs necessitated by that neglect. Also, such an individual will not

entitled to notice of any subsequent proceedings in the matter.

Service of a document may be effected by courier, regular ordinary mail, fax or electronic

transmission, where expressly authorized by statute, regulation or the Rules of Court. Rule 21

provides the proper way to effect service by an alternate mode.

Please observe Rules 31 and 32 for the procedure to prove service. Proving service can be

accomplished by filing an Acknowledgement of Service. When service has been effected by a

Sheriff, service may be proven by filing a Certificate of Service (Form 3A). If no Acknowledgement

of Service has been returned, service of a document shall be proved by an Affidavit of Service stating

the mode of service, the date, time and place where the document was served, and the person who

effected service. The Affidavit of Service is Form 4.

As outlined in Rule 21(6), facsimile service has been added to the Queen’s Bench Rules to allow

for service of documents by telephone of a facsimile of the document. Rule 21(6) provides as

follows: 21(6) In the case of service by fax, the document shall be faxed to the fax number shown in the

address for service of the person to be served and shall include a cover page that sets out the following information: (a) the sender's name, address, telephone and fax number; (b) the name of the person to be served; (c) the date and time of transmission; (d) the total number of pages transmitted, including the cover page; and (e) the name and telephone number of the person to contact in the event of transmission problems.

This rule provides the information which must be included on a cover page.



4. Provision of Documents and Materials

Rule 460B has been added to the Queen’s Bench Rules and reads as follows: 460B Except for ex-parte matters, where any brief, submission or like material is filed, a copy of the same shall be provided to all interested parties before or concurrent with the filing.

This Rule is included in the general section of Part 38 of the Queen's Bench Rules dealing with

Motions and Applications and is of obvious importance in all Chambers applications in which

any form of brief, submission or like material is filed by either side. The effect of the Rule is to

formalize the requirement of providing such materials to all interested parties.

C. PREROGATIVE WRITS

Pursuant to Part 52 of the Rules of Court, an application for Judicial Review by way of

mandamus, prohibition, quo warranto, certiorari or to quash the proceedings and/or decisions of

administrative tribunals may be commenced by Notice of Motion. The rules require that the

parties to the application be shown in the style of cause as applicant and respondent. Writs of

mandamus, prohibition, certiorari or quo warranto are no longer issued; rather, all necessary

directions are given by order.

In an application to quash an administrative tribunal’s award or proceedings, Rule 669 requires

the applicant to send a notice to the tribunal requiring that it return its record to the Court for the

purpose of hearing the application. Rule 669 sets out the wording of such a notice, to be

“adapted as may be necessary,” as follows: “You are required by the rules of court forthwith to return to the local registrar of this court at the Court House (address in full) Saskatchewan, the conviction, order, decision, (or as the case may be) and the reasons thereof, together with the process commencing the proceedings and the warrant, if any, issued thereon”.



II. EVIDENCE ON CHAMBERS APPLICATIONS

A. INTRODUCTION

This portion of the paper is substantially a reproduction of the paper entitled Evidence on

Chambers Applications prepared by William Johnson and presented at the Continuing Legal

Education Seminar “Civil Chambers Applications” held on March 12, 1983 in Regina.

B. AFFIDAVIT EVIDENCE

The basic rule is that only affidavit evidence is admissible on Chambers applications. In

addition, however, transcripts of cross-examinations on affidavits ordered by the Court are

admissible.

Part 28 of the Rules of Court deals with the use of affidavits generally on Chambers applications.

1. Form of Affidavit

Affidavits must carry the style of cause and the name of the deponent: Rule 318.

Affidavits must be sworn in accordance with Rule 320. If the commissioning is questioned in

some way, then the onus is on the questioner: Watrous Credit Union v. Sikorski (1969), 70

W.W.R. 521, Sask. D.C. It seems the commissioner need not use the oft stated words: “Do you

swear these statements to be true, so help you God?” or “Do you solemnly affirm the statements

to be true?” As long as something is done so that the deponent and the commissioner understand

the deponent is swearing it seems the commissioning is complete once the commissioner has

completed the jurat (Rule 321).

Usually out-of-province affidavits are notarized. The notary must affix his seal of office. An

out-of-province affidavit may be commissioned by a Commissioner for Oaths within

Saskatchewan (the Commissioner for Oaths Act, R.S.S. 1978, c. C-16, s.3).



In either case the affidavit is then admissible evidence in Saskatchewan: section 51 of the

Saskatchewan Evidence Act, R.S.S. 1978, c. S-16. The seal must be on the jurat and on the

exhibit stamp. Pencilling instructions respecting execution and swearing on the affidavit sent out

for execution will always save time.

Infants’ depositions would require satisfaction of the general test of the Evidence Act (section 42

is not of tender years, which seems to mean over the age of 14 years).

Rule 322 requires the deponent’s name and place of residence to be set forth. The affidavit must

be written in the first person and divided into paragraphs which shall be numbered consecutively.

Each paragraph shall be confined to a distinct portion of the subject matter or confined to one idea.

The concluding paragraph should make reference to the matter in issue which the affidavit is

filed either in support of or in opposition to.

Where several deponents are swearing to the same facts Rule 323 must be followed. The

deposition could begin as follows: “AB, Butcher, of Saskatoon, Saskatchewan, and CD, Baker,

of Saskatoon, Saskatchewan, MAKE OATH AND SAY AS FOLLOWS:”. The jurat should

provide: “Severally sworn by AB and CD, or both, of the above named deponents...”.

Interlineations, alterations or erasures must be initialled by the officer taking the affidavit: Rule 328.

Abundant caution suggests that the deponent also initial the changes.

Rule 329 provides for the proper procedure for the taking of an affidavit of an illiterate person,

blind person or a person who does not understand the English language. Appropriate forms of

jurat are included at the end of the materials.

Rule 330 provides that the court may receive an affidavit notwithstanding any irregularity in its

form. When Rule 330 is applied, the practice seems to be to grant the order sought on condition

that the defect be remedied. The order will issue only after the corrected affidavit is filed:

McGillivray v. Beamish (1915), 7 W.W.R. 1188 (Sask. S.C.).



The normal practice is that any document referred to in an affidavit as an exhibit is attached

thereto and marked as an exhibit. The exhibit stamp must be completed by the commissioning

officer. Rule 333 permits the introduction of documents which need not be annexed to the

affidavit but are marked as an exhibit. Such exhibits must be marked with a short title of the

cause or matter. If the exhibit is already on the court file, it is not to be attached and rather

reference is to be made to the date it was filed with the court: Rule 333(2).

2. Procedure

Affidavits shall be filed before being used: Rule 324. On ex-parte applications affidavits are to

be filed before the application is made and on Notice of Motions or Petitions or other proceedings

affidavits are to be filed before service of the motion: Rule 325. This rule has been largely

ignored in practice; however, copies of the affidavits are traditionally served with the Notice of

Motion. There must be compliance with Rule 325 in proceedings requiring strictissimi juris (e.g.,

contempt proceedings). Retail Wholesale et al v. Prince Albert Co-operative Association et al

(1984), 1 W.W.R. 421.

Rule 326 provides for the filing of affidavits with the Local Registrar of the judicial centre where

the action is of record or with the Chambers clerk where the motion is to be heard.

Rule 331 provides that affidavits in answer to affidavits may be made, by leave of the Court, as

to new matters arising out of such affidavits. In most circumstances such leave will be granted.

3. Substance

Rule 319 states the fundamental principle that only direct, and not hearsay or opinion, statements

may be sworn. There is an important exception for interlocutory applications where hearsay and

opinion evidence is permitted. Section 45(20) of the Queen’s Bench Act imposes special

procedural requirements and excludes hearsay depositions in injunction applications. Failure to



comply with the requirement of personal knowledge will result in exclusion of the offending

portions of the affidavit. [See the Dependent’s Relief Act: Grant Estate (1971), 1 W.W.R. 555

(B.C.S.C.).]

Rule 319 requires that the deponent give the grounds for his belief. Failure to comply may result

in the refusal of the Court to grant the relief sought: Athabaska Airways Ltd. v. Saskatchewan

Government Airways (No. 2) (1957), 24 W.W.R. 379 (Sask. C.A.).

Please be careful with corporations. The company cannot give the information on which belief

is founded. Only an officer can: Midtown Draperies Ltd. v. Prairie West Construction (1970),

73 W.W.R. 701 (Sask. D.C.).

It is an unacceptable practice for a lawyer to swear an affidavit on other than purely formal or

uncontroverted matters in any proceedings where the lawyer or his partner or associate appears

as counsel.

The Law Society of Saskatchewan’s Code of Professional Conduct, Chapter IX provides:

5. The lawyer who appears as an advocate should not submit the lawyer's own affidavit to or testify before a tribunal save as permitted by local rule or practice, or as to purely formal or uncontroverted matters. This also applies to the lawyer's partners and associates; generally speaking, they should not testify in such proceedings except as to merely formal matters. The lawyer should not express personal opinions or beliefs, or assert as fact anything that is properly subject to legal proof, cross-examination or challenge. The lawyer must not in effect become an unsworn witness or put the lawyer's own credibility in issue. The lawyer who is a necessary witness should testify and entrust the conduct of the case to someone else. Similarly, the lawyer who was a witness in the proceedings should not appear as advocate in any appeal from the decision in those proceedings. There are no restrictions upon the advocate's right to cross-examine another lawyer, and the lawyer who does appear as a witness should not expect to receive special treatment by reason of professional status.

This rule of conduct is strictly enforced by the Saskatchewan courts.

R. v. Ironchild (1984), 30 Sask. R. 269 at 275-6.

Bilson v. University of Saskatchewan (1984), 4 W.W.R. 239 at 240-1.

Powalinsky v. Birch Hills, 35 Sask. R. 264 at 269.

[See also: Court of Appeal Civil Practice Directive 1.]



It is additionally unwise for a lawyer to swear an affidavit on a substantive motion because even

if the affidavit is for a minor point, the deponent can be examined on it. And, as will be

mentioned, the examination is not confined to the depositions in the affidavit. Thus, the

unfortunate solicitor may be compelled to provide information which is relevant and privileged!

For example, in Thomson v. Thomson (1948), O.W.N. 137 , the Ontario High Court was presented

with a “motion by the defendant spouse to commit Mayer Lerner, solicitor for the plaintiff, for his

failure to answer questions on his cross-examination upon an affidavit, or in the alternative for an

order requiring the solicitor to re-attend and answer.” The husband had brought an action for

divorce. The defendant spouse recovered judgment in an action for alimony and maintenance in

September 1947, and in this action, which was instituted after that judgment, the plaintiff made

definite allegations of misconduct on the part of the defendant and asserted that he had no

knowledge of that misconduct at the time of the trial of the first action. The defendant denied the

commission of adultery, and the wife counter-claimed, asking only for a declaration that the

plaintiff was not entitled to proceed with this action before paying arrears under the first judgment.

The plaintiff applied to the Local Master at London for an order striking out the counterclaim on

the following grounds: that it did not disclose a cause of action; that certain paragraphs did not

contain a concise statement of facts but were matters of evidence; and that the matters set forth

were not properly part of a counterclaim but were set forth only to embarrass the plaintiff in the

action. In support of this motion there was filed and served the affidavit of the solicitor, in

which he deposed, inter alia: 2. That the material set forth in the Statement of Counter-claim ... is only a recital of events that occurred with respect to an action for alimony, custody and maintenance which was maintained by the Defendant . . . and which action was concluded prior to the institution of this action. 3. That since the trial of the action referred to in the paragraph above the plaintiff herein has discovered evidence of adulterous misconduct between the Defendants in this action which evidence he is informed and verily believes to be true in substance and in fact, and therefore, says that the Statement of Counterclaim is an attempt ... to introduce extraneous matters which would be inadmissible at the trial of this action and only prove vexatious and embarrassing if not struck out at this time.



An appointment was taken out for cross-examination upon this affidavit. After the examination

had proceeded some distance questions were asked about the contents of para. 3 and subsidiary

matters, and the examinee refused to answer on the ground that answers would violate the

privilege surrounding information received by him as a solicitor from his client. This motion

followed.

Mr. Justice Gale stated, in part:

Mr. Grossberg repeats the contention taken on the examination itself, that the information asked for was privileged. Without attempting to outline my impressions as to what is the privilege existing between a solicitor and his client, and when that privilege ceases to operate, I can only say this, that it having been made clear by the evidence given by Mr. Lerner that the privilege was waived to the extent of the information contained in the affidavit, it is, in my opinion, waived as to the knowledge of the solicitor, wherever that knowledge touches upon the subject matter of the affidavit, and that it would be an artful device to waive the privilege in so far as the precise wording of the affidavit is concerned, but set it up to deprive the opposite party of the right of cross-examination on that affidavit. It would seem to me that this aspect of the matter is resolved by the decision of our Court of Appeal in Re United States of America v. Mammoth Oil Co., 56 O.L.R. 635, (1925) 2 D.L.R. 966.

While I entertain no sympathy for the defendant spouse, for the foregoing reasons I must hold that Mr. Lerner was obliged to submit himself to be cross-examined upon the matters expressly set out in his affidavit and any collateral questions arising from his initial answers. I repeat, however, that I do not concur in the thought advanced by Mr. Walsh that counsel for the defendant is to have the right to cover all matters which might be said to be in issue in the action or in the counterclaim. The questions that may properly be put are those which are indicated by the statements specifically set forth in the affidavit and no more, since no other questions would seem to be relevant to the disposition of the motion. Questions 12 and 23 should have been answered by Mr. Lerner, but I agree with Mr. Grossberg that the other questions in respect of which answers were sought are not properly the subject matter of cross-examination.

Counsel for the defendant wife is not pressing for the other relief claimed by her in the notice of this motion and there will therefore be an order that Mr. Lerner be required to attend at his own expense to answer questions 12 and 23 and any other questions which properly arise from the answers which he gives to those two questions. The defendant wife is entitled to the costs of this motion against the plaintiff in any event.”

Order accordingly.

Finally, it must be remembered that, under Rule 319, “where affidavits upon information and

belief are filed which do not adequately disclose the grounds of such information and belief the

Court may direct that the costs of such affidavits shall be borne by the solicitor filing the same”.



The questions of what are “interlocutory” and “final” applications have been considered by the

English courts. The best statement is that of Cotton L.J., in Gilbert v. Endean (1978), 9 Ch. D.

259, at p. 268, as follows: ...for the purpose of this rule those applications only are considered interlocutory which do not decide the rights of parties, but are made for the purpose of keeping things in status quo till the rights can be decided, or for the purpose of obtaining some direction of the court as to how the cause is to be conducted, as to what is to be done in the progress of the cause for the purpose of enabling the court ultimately to decide upon the rights of the parties. Now many of the cases which are brought before the court on motions and on petitions, and which are therefore interlocutory in form, are not interlocutory within the meaning of that rule as regards evidence. They are to decide the rights of the parties, and whatever the form may be in which such questions are brought before the court, in my opinion of the evidence must be regulated by the ordinary rules, and must be such as would be admissible at the hearing of the cause.

There is, in the particular situation, an excellent analysis of the categorization of such

applications by Cross J. (later Lord Cross) in Re J. (1960), 1 All E.R. (H.C.). See also Tallis,

J.A. in Cherry v. Hindmarsh (1987), 64 Sask.R. 220.

Rule 327 provides that the court may order that any scandalous portion of an affidavit be struck

and that the costs of any application to strike out the matter be paid as between solicitor and client.

C. ORAL EVIDENCE

The court may require oral evidence on certain matters in Chambers. There is no procedure for

the presentation of oral evidence in Chambers nor is such evidence admissible absent special

circumstances. See Arrow Motors Ltd. v. Carter (1969), 3 D.L.R. (3d) 756 (Sask. Q.B.) wherein

Mr. Justice Disbery said that the proper course would have been to direct a trial of the issue.

1. Cross-Examination of a Witness Who Will Not Provide an Affidavit

Rule 289 provides: “The court may in any cause or matter where it shall appear necessary for

the purposes of justice, make any order for the examination upon oath before the court or any

officer of the court, or any other person, and at any place, of any witness or person, and may

empower any party to any such cause or matter to give such deposition in evidence therein on

such terms,



if any, as the court may direct.” In the Arrow Motors case, Mr. Justice Disbery suggested that

this rule could be used in Chambers practice to obtain the evidence of a person who is refusing to

provide an affidavit. He stated at p. 762: The most unusual action of counsel in calling Elliott to give viva voce evidence instead of obtaining an affidavit from him was both contrary to the rules and to long established practice. Viva voce evidence may be used in Chambers if an Order therefor is secured under Rule 289 which provides as follows:

289. The court may in any cause or matter where it shall appear necessary for the purposes of justice, make any order for the examination upon oath before the court or any officer of the court, or any other person, and at any place, of any witness or person, and may empower any party to any such cause or matter to give such deposition in evidence therein on such terms, if any, as the court may direct.

“Court” in the Rule includes Judges and Masters sitting in Chambers (Rule 4). An order under this Rule is a discretionary one, and can easily contemplate that exceptional circumstances at times may require the granting of an order under the Rule; for example, if a person possessed of evidence which a Court should have in order to do justice refused to give an affidavit to counsel. But no exceptional circumstances appear in the material before me and no order was obtained authorizing Elliott to give viva voce evidence in Chambers, and no deposition of his testimony was taken.

This is described in Watson, Borins, Williams Canadian Civil Procedure, 1973 pp. 737-738:

7. Oral Examination of a Witness on a Pending Motion We noted in the preceding section that the usual way of providing the court with evidence upon which to decide a motion is by the making and filing of an affidavit. Suppose, however, that a party wishes to obtain evidence from a person who is unwilling to swear an affidavit. Obviously, he cannot be forced to come into a lawyer’s office and put his pen to paper and swear to an affidavit. Therefore, some other procedure is necessary if the evidence of a person who is not prepared to make an affidavit is to be made available to the court. Rule 230 establishes that procedure. It provides that “Any party may by subpoena require the attendance of a witness to be examined ... for the purpose of using his evidence upon any motion.”

The operation of Rule 230 can be illustrated by a simple example. Suppose that a wife has commenced an action against her husband for alimony and has brought an application for interim alimony. She wishes to have the evidence of the accountant of her husband but the accountant is unco-operative and will not swear an affidavit. The Rule enables the wife to require the accountant to attend before the special examiner to give evidence for use on the subsequent motion. His attendance for the purpose of the examination can be secured under Rule 344.

Some of the difficulties associated with this type of provision are catalogued in Watson at p. 742

as follows: 3. The object of the procedure under Rule 230 is to obtain evidence for use upon a motion. Thus, though an examination conducted under the Rule in good faith may achieve the same result, an examination will not be permitted which has its sole aim the examination of a party or a stranger for discovery (D. v. W. (1912), 3 O.W.N. 993) or the obtaining in advance of the evidence of witnesses who will be called at trial by the opposing party (Miller v. Public School Board of King, (1942) O.W.N. 546). Also, questions which do not relate to any matter in issue on the motion, but only to the issues at trial, are improper and need not be answered.



2. Examination on the Affidavit

Rule 317 provides that cross-examination on the affidavit is discretionary.

Counsel should use discretion in making this application. If it is not necessary, the costs must be

borne by the applicant. These costs include conduct money, appointment fee, hearing fee and

transcript costs. R. v. Nipawin & District Satelite T.V. Inc. (1986), 47 Sask. R. 58 (Q.B.).

Additionally, the entire transcript will go before the Chambers judge, not only the favourable

questions and answers. See Ray v. R.M. of Meota (1955), 18 W.W.R. 513 (Sask. Q.B.).

As has been indicated above, the cross-examination is not confined to the depositions in the

affidavits. It may extend to the credibility of the deponent. This will even extend to the

production of documents by the deponent to test his accuracy or contradict his evidence:

McCallum v. Bates (1945), O.W.N. 243 (H.C.); and College Brand Clothes Company Limited v.

Brown (1928), 1 W.W.R. 778 (Alta. C.A.).

Some suggests that some of the advantages of this procedure are:

(a) to obtain additional information prior to the trial from a non-party;

(b) to have the transcript for purposes of cross-examination at the trial if the deponent is called to testify;

(c) to pursue the deponent at length, without fear of antagonizing an impatient judge, or eliciting harmful answers which do not impact on the chambers application but which might well prove damaging on the trial; and

(d) to be able to carefully prepare for the questioning of the deponent who, if presented at trial as a witness, would have to be faced immediately after examination in chief.



III. ORDERS

A. FORM

The formal requirements for orders are established by Rule 467 and Form 49. There is no

requirement of form for orders enlarging time or giving leave for certain procedural steps: Rule 473.

Counsel should endeavour to file with the Court a draft order. If there is to be a consent order, it

is good practice to obtain the endorsed consent of both counsel to the order, although in

Chambers both counsel may orally agree to the form of the order. Counsel should confirm with

the Local Registrar the wording of an order before it is prepared or submitted to be issued.

B. PROCEDURE

The order is prepared by counsel for the successful party. A copy is required to be left on the

court file: Rule 467(1). The order is issued by the Local Registrar (Rule 468). Service of the

order may be required by the fiat. The order is normally served on counsel for the opposing

party.

C. EX PARTE ORDERS

Rule 467 (2a) requires the following endorsement to be added at the foot of each ex parte order: Take notice that every order made without notice to the respondent or a person affected by the order, except where such order is consented to by the respondent or a person affected by the order, or is otherwise authorized by law, may be set aside or varied on application to the Court. You should consult your solicitor as to your rights.

It should be noted that the endorsement is not required where the order is issued by consent, or

where the order is otherwise authorized by law.

There may be instances where a Chambers or trial judge will dispense with the inclusion of the

endorsement.



D. COSTS

Effective January 1, 2003, the Court of Queen’s Bench Rules of Court related to costs received

significant amendment. Part 46 of the Rules of Court should be reviewed in its entirety. Of

particular application to Chambers applications is Rule 553 dealing with costs and interlocutory

proceedings. Note Rule 553(2) provides that no ex parte order shall contain any direction as to

costs.

Saskatchewan Continuing Legal Education sponsored a seminar on costs: Fees and Costs

Seminar, 1980. While these materials are now somewhat dated, the general principles in the

materials are still useful. Of particular relevance to orders on motions is the paper prepared by

Fred Newis and credit is given to Mr. Newis for some of the references below.

1. Party and Party Costs

“The fundamental principle of costs as between party and party is that they are given by the

Court as an indemnity to the person entitled to them, they are not imposed as a punishment on

the person who must pay them.” (Orkin, The Law of Costs, 2nd ed. (Aurora: Canada Law Book,

looseleaf), at 14). They are considered to be a partial indemnity only to the successful litigant

against his liability to pay his own solicitor’s costs.

There is no “right” to costs. To whom they shall be paid, and in what amount, are within the

discretion of the court or judge, subject, of course, to the express provisions of any statute or rule

of court. See Rule 545. Where no specific order is made, costs will follow the event.

For a comprehensive discussion of party and party costs in Saskatchewan, see Guyer Oil & Co. Ltd.

v. Fulton et al (1973), 2 W.W.R. 613.

Costs are not the property of the solicitor but that of his client, subject to a solicitor’s lien, if the

circumstances so dictate.



2. Interlocutory Proceedings

Rule 553 speaks to costs and interlocutory proceedings and provides: 553(1) The costs of any interlocutory motion or application: (a) shall follow the outcome of the motion or application; (b) shall be assessed on the same scale as the general costs of the action or proceeding; and (c) are not payable until final determination of the action or proceeding.

(2) No ex parte order shall contain any directions as to costs. 3. Costs of the Day

Such costs are occasionally given where, by the default of a party, the proceedings are not able

to proceed on the day fixed and are therefore adjourned to a future time. Such costs will include

all costs thrown away and counsel fee to all counsel representing those parties not responsible

for the adjournment.

4. Tariff of Costs

From section 28(1) of The Queen’s Bench Act, 1998 flows the power of the judges of the Court

of Queen’s Bench to provide a tariff of fees and allowances for services of barristers, solicitors

and counsel in all causes, actions and matters in the Court as well as a tariff of fees to be paid to

witnesses, jurors and interpreters.

The tariff of solicitors’ fees applicable to matters in the Court of Queen’s Bench forms part of the

Rules of Practice and Procedure and is referred to as Schedule I “B”. The schedule is divided into

four columns, each covering a specific range of dollar values. Rule 564 and its various subsections

determines which of the four columns is appropriate for the taxation of the costs recovered in any

proceeding in the court.

The appropriate column is determined as against the plaintiff, by the amount of the claim, or as

against the defendant by the amount of the judgment. Where relief other than or in addition to

money is given by a judgment or an order or where judgment given to a plaintiff in a proceeding



where relief other than money was claimed, fees are assessed according to the higher of column

3 or Tariff Schedule I “B”, or the column that would apply if non-monetary relief had not been

given or sought.

Each item in the Tariff Schedule is deemed to include all necessary or reasonable services

required to complete such item. If any step has only been partially completed, only a

proportionate charge may be allowed.

The assessment officer has discretion to do the following:

(a) where the amount involved is in the third and fourth columns of Tariff Schedule I “B”, he may allow the lawyer for the party entitled to costs increased fees as may be just and reasonable, up to double that set out in the appropriate column;

(b) where the steps taken by the lawyers have expedited proceedings, saved costs or settled the proceeding, he may make an allowance therefore; and

(c) where a lawyer has performed services which are not provided for by the tariff, the assessment officer may give such allowance for that service as he considers fair and reasonable.

An application to review the exercise of discretion by the assessment officer may be made

pursuant to Rule 567.

5. Assessment of Costs

A party entitled to costs may obtain a Notice of Appointment for Assessment of Costs (Rule

558) by filing with the Assessment Officer:

(a) a Bill of Costs; and

(b) Affidavit of Disbursements where required by Rule 563(3).

The Notice of Appointment for Assessment of Costs is to be in Form 558. In every Bill of Costs,

lawyers fees shall be entered in a separate column from the disbursements and the columns are to

be totaled before the bill is filed with the Local Registrar. See Rule 558(4) which sets out the

requirements for the contents of the Affidavit of Disbursements.



The Notice of Appointment for Assessment of Costs, the Bill of Costs, and any Affidavit of

Disbursements are to be served at least 14 days before the date fixed for the assessment or at any

earlier date than the Assessment Officer may direct. Upon proof of service, the Assessment

Officer may proceed with the assessment in the absence of either party.

See Rule 559 for the applicable procedures where a party entitled to costs fails or refuses to file a

Bill of Costs within a reasonable period of time. This rule allows the assessment to be made at

the instance of the party liable for costs.

Rule 560 sets out the power and authority of the Assessment Officer allowing that Assessment

Officer to:

(a) take evidence by Affidavit or administer oaths and examine witnesses as is considered appropriate;

(b) require production of books, papers and documents;

(c) require notice of the assessment to be given to all interested parties;

(d) give directions and perform duties that are considered necessary for the conduct of the assessment and refer a matter requiring the Courts direction to the Court;

(e) where the parties are liable to pay costs to each other, the Assessment Officer may set off the costs, delay the entitlement of one party to its costs until they have paid the other or given two separate certifications as to costs; and

(f) award costs of the assessment to any party and fix those costs.

Rule 563 provides that costs are to be assessed in accordance with the tariff. At the conclusion of

the assessment, the Assessment Officer is to certify the amount of costs by endorsing a certificate

on the Bill of Costs filed and filing a Certificate of Assessment of Costs. See Rule 561 and Form

561.

PRECEDENTS


Saskatchewan: Bar Admission Program P - 1 Civil Procedure - Chambers Applications Precedents - Memorandum to the Judge


Q.B.G. No. of 2007

IN THE COURT OF QUEEN’S BENCH

JUDICIAL CENTRE OF _______ BETWEEN:

JANET DOE APPLICANT (PLAINTIFF)

AND:

JONATHON SMITH

RESPONDENT (DEFENDANT)

MEMORANDUM TO THE JUDGE

This is an ex-parte application on behalf of the Applicant, Janet Doe, for an Order pursuant

to Rule 441(3) and Rule 27 of the Rules of the Court of Queen’s Bench for an Order permitting the

substitutional service of the Statement of Claim upon the Defendant, Jonathon Smith, by serving the

same as follows:

(i) by posting the Statement of Claim and the Order for Substitutional Service upon the door to the residence of the Defendant, Jonathon Smith at 123 Apple Street, Regina, Saskatchewan ; and

(ii) by sending a copy of the Statement of Claim and the Order for Substitutional

Service to 123 Apple Street, Regina, Saskatchewan, S4S 6W1, being the postal address of the Defendant, Jonathon Smith, by registered mail.

In support of this application will be filed the following:

(i) the Affidavit of Janet Doe;

(ii) the Affidavit of Henry Elk; and

(ii) Draft Order for Substitutional Service.

P - 2 Saskatchewan: Bar Admission Program Civil Procedure - Chambers Applications Precedents - Memorandum to the Judge


In support of this application, the Applicant, Janet Doe, relies on the following authorities:

(i) Queen’s Bench Rule 27;

(ii) Roberds v. Schwenker (1984), 29 Sask. R. 105 (Q.B.); and

(iii) McDonald v. McEwan (1983), 25 Sask. IL 68 (Q.B.).

None of the opposing parties to this application is, to the knowledge of the Applicant,

represented by legal counsel.

-OR-

The opposing party, _________________, is represented by __________________ of the

_____________________ law firm.

DATED at the City of ____________, in the Province of Saskatchewan, this_____ day of

_________, 2007.

Per: Solicitors for the Applicant/Plaintiff

This document was delivered by: Address for Service: Lawyer in Charge of File: Telephone:

Saskatchewan: Bar Admission Program P - 3 Civil Procedure - Chambers Applications Precedents - Order


Q.B.G. No. of A.D. 2007

IN THE COURT OF QUEEN'S BENCH

JUDICIAL CENTRE OF ___________ BETWEEN:

JANET DOE

APPLICANT (PLAINTIFF)

AND:

JONATHON SMITH

RESPONDENT (DEFENDANT)

BEFORE THE HONOURABLE ) _____ DAY, THE _____ DAY M_____ JUSTICE ____________ ) OF ________________, 2007 IN CHAMBERS ) _______________, SASKATCHEWAN

ORDER UPON the application of counsel for the Applicant, Janet Doe, for an Order permitting the

substitutional service of the Statement of Claim;

IT IS HEREBY ORDERED AND ADJUDGED that pursuant to Rules 441(3) and 27 of the

Rules of the Court of Queen's Bench, the Applicant, Janet Doe, be permitted to serve the Proposed

Defendant, Jonathon Smith, with the Statement of Claim as follows:

(i) by posting the Statement of Claim and a copy of this Order upon the door to the residence of the Defendant, Jonathon Smith at 123 Apple Street, Regina, Saskatchewan; and

(ii) by sending a copy of the Statement of Claim and a copy of this Order to 123 Apple Street, Regina, Saskatchewan, S4S 6W1, being the postal address of the Defendant, Jonathon Smith, by registered mail.

P - 4 Saskatchewan: Bar Admission Program Civil Procedure - Chambers Applications Precedents - Order


AND IT IS FURTHER ORDERED that service of the said document in the manner set out

above shall constitute valid and sufficient service of the said document upon Jonathon Smith.

ISSUED at the City of _________________, in the Province of Saskatchewan, this

_______ day of ________________, A.D. 2007.

________________________ Local Registrar TAKE NOTICE that every Order made without notice to the Respondent or a person affected by the Order, except where such Order is consented to by the Respondent or a person affected by the Order, or is otherwise authorized by law, may be set aside or varied on application to the Court. You should consult your solicitor as to your rights.

Saskatchewan: Bar Admission Program P - 5 Civil Procedure - Chambers Applications Precedents - Affidavits


Q.B.G. No. of 2007


JUDICIAL CENTRE OF _________ BETWEEN:


AND

JONATHON SMITH RESPONDENT (DEFENDANT)

AFFIDAVIT OF JANET DOE I, Janet Doe, of Regina, Saskatchewan, MAKE OATH AND SAY THAT:

1. I am the Applicant/Plaintiff, and as such I have personal knowledge of the facts and matters

hereinafter deposed to, except where stated to be based upon information and belief, and whereso

stated I do verily believe the same to be true.

2. I have been advised by my solicitor, Barrister Solicitor, and I verily believe it to be true, that

he has been unable to arrange for service of the Statement of Claim, being part of the Court file

herein, on the Defendant, Jonathon Smith.

3. I have reviewed the Affidavit of Attempted Service of Harry Elk of Security Collection

Agency, sworn May 18, 2001 which outlines the attempts made by Security Collection Agency to

effect personal service of the Statement of Claim and Acknowledgement of Service on Jonathon

Smith with no success. The Affidavit of Mr. Elk confirms that on several occasions Mr. Elk has

attended at the Defendant’s residence at 123 Apple Street, Regina, Saskatchewan, but has yet to

make contact with Jonathon Smith. Despite repeated attempts by Security Collection Agency to

effect service of the Statement of Claim, they have been unable to effect service on Jonathon Smith.

P - 6 Saskatchewan: Bar Admission Program Civil Procedure - Chambers Applications Precedents - Affidavits


4. Based on the foregoing, it is my belief that it is impractical for myself to continue to make

attempts to effect personal service on Johathon Smith.

5. To the best of my knowledge, Jonathan Smith is not represented by legal counsel, nor does

he have a fax machine or e-mail address. Therefore, service by those means is not possible.

6. In my opinion, the Statement of Claim could be served upon the Defendant by posting the

same at the Defendant’s residence, namely 123 Apple Street, Regina, Saskatchewan and by sending

a copy of the Statement of Claim by registered mail to that address and that mode of service would

be likely provide Jonathan Smith with notice of the proposed action.

7. I make this Affidavit in support of an Application by the Applicant for an Order providing

for substitutional service of the Statement of Claim upon the Defendant, Jonathon Smith, by posting

the said Statement of Claim along with the Order for Substitutional Service to the door of the

Defendant’s residence at 123 Apple Street, Regina, Saskatchewan, and sending a copy of the

Statement of Claim and the Order for Substitutional Service to the said address as set out in the

Applicant’s Memorandum to the Judge and the Draft Order files herein.

SWORN before me at the City of Regina ) in the Province of Saskatchewan, ) this ______ day of May, 2007. ) ) ____________________________ ) JANET DOE ____________________________________) A COMMISSIONER FOR OATHS in and for the Province of Saskatchewan. My Commission Expires: (or) Being a Solicitor.



Q.B.G. No. of 2007




AND

JONATHON SMITH RESPONDENT (DEFENDANT)

AFFIDAVIT OF HARRY ELK I, Harry Elk, of Regina, Saskatchewan, MAKE OATH AND SAY THAT:

1. I am a bailiff and process server and the owner and operator of Security Collection Agency,

and as such have personal knowledge of the facts and matters hereinafter deposed to, except where

stated to be based upon information and belief and whereso stated I do verily believe the same to be

true.

2. On April 1, 2007, I received written instructions from Barrister Solicitor to attend to personal

service of the Statement of Claim issued herein upon the named Defendant, Jonathon Smith.

3. Since receiving the written instructions I have made the following attempts at personal

service upon the Defendant:



(a) On April 2, 2007, I attended to the Defendant’s residence of 123 Apple Street,

Regina, Saskatchewan. No one responded to my knock at the door. I noted the

newspaper in the mailbox.

(b) On April 6, 2007, I attended to the Defendant’s residence of 123 Apple Street,

Regina, Saskatchewan. There appeared to be movement inside the home but no one

responded to my knock at the door. In addition I noted the newspaper had been

removed from the mailbox.

(c) On April 8, 2007, I attended to the Defendant’s residence of 123 Apple Street,

Regina, Saskatchewan. No one responded to my knock at the door.

(d) On April 9, 2007, I attended to the Defendant’s residence of 123 Apple Street,


responded to my knock at the door.

(e) On April 15, 2007, I attended at the Defendant’s residence of 123 Apple Street,

Regina, Saskatchewan. No one responded to my knock at the door.

(f) On April 22, 2007, I attended to the Defendant’s residence of 123 Apple Street,


responded to my knock at the door.

(g) On May 5, 2007, I attended to the Defendant’s residence of 123 Apple Street,

Regina, Saskatchewan. No one responded to my knock at the door. I noted there

was no build up of mail or newspapers in the mailbox.

4. In my opinion, given there was movement within the home but refusal to answer the door,

the Defendant may be attempting to avoid service of the Statement of Claim.

5. In my opinion the Statement of Claim could be served upon the Defendant by posting the

same to the Defendant’s residence at 123 Apple Street, Regina, Saskatchewan and by mailing the

same by registered mail to the same address.



6. I make this Affidavit in support of an Application by the Applicant for an Order providing

for substitutional service of the Statement of Claim upon the Defendant, Jonathan Smith, by posting

the said Statement of Claim along with the Order for Substitutional Service to the door of the

Defendant’s residence at 123 Apple Street, Regina, Saskatchewan, and sending a copy of the

Statement of Claim and the Order for Substitutional Service to the said address as set out in the

Applicant’s Memorandum to the Judge and the Draft Order filed herein.

SWORN before me at the City of Regina ) in the Province of Saskatchewan, ) this 18th day of May, 2007. ) ) ____________________________ ) HARRY ELK ____________________________________) A COMMISSIONER FOR OATHS in and for the Province of Saskatchewan. My Commission Expires: (or) Being a Solicitor.



(This page has been intentionally left blank.)

Saskatchewan: Bar Admission Program P - 11 Civil Procedure - Chambers Applications Precedents - Notice of Motion


Q.B.G. No. of 2007



JANE SMITH RESPONDENT

(PLAINTIFF) AND:

JOHN DOE APPLICANT

(DEFENDANT)

NOTICE OF MOTION TAKE NOTICE that an Application will be made to the presiding Judge in Chambers at the

Court House, ________________, in the City of _______________, in the Province Saskatchewan,

on ___________ the _____ day of _________, 2007, at ________ in the ______noon or so soon

thereafter as counsel may be heard on behalf of the Applicant, John Doe, for an Order pursuant to

Rule 346 of the Court of Queen’s Bench Rule for the following relief:

(i) the noting for default of defence of the Defendant in the within action be set aside and the Defendant be entitled to defend the within action;

(ii) the judgment entered in default of defence in the within action be set aside; and

(iii) the Writ of Execution in the within matter be set aside.

AND FURTHER TAKE NOTICE THAT in support of the said Applicant, will be read the

following:

(i) this Notice of Motion with proof of service thereof; (ii) Affidavit of John Doe; (iii) the Draft Order; (iv) such further and other material as counsel may advise and this Honourable

Court may allow.

P - 12 Saskatchewan: Bar Admission Program Civil Procedure - Chambers Applications Precedents - Notice of Motion


AND FURTHER TAKE NOTICE THAT the grounds to be argued in support of this

application include, inter alia:

(i) this application has been brought as soon as possible after the noting for default was brought to the attention of the Defendant/Applicant;

(ii) the circumstances surrounding the default have been explained in the Affidavit of the Applicant, filed herein;

(iii) the Applicant has a defence to the within action, as set out in the Affidavit of the Applicant, filed herein; and

(iv) there is no prejudice to the Plaintiff that cannot be compensated for by the order of costs.

DATED at the City of _____________, in the Province of Saskatchewan, this _____

day of _____________, 2007.

Per: _____________________________ Solicitors for the Applicant/Defendant

TO: Jane Smith

c/o (address) This document was delivered by: Address for Service: Lawyer in Charge of File: Telephone:

Saskatchewan: Bar Admission Program P - 13 Civil Procedure - Chambers Applications Precedents - Order


Q.B.G. No. of 2007

IN THE COURT OF QUEEN’S BENCH

JUDICIAL CENTRE OF ___________ BETWEEN:

JANE SMITH APPLICANT (PLAINTIFF)

AND:

JOHN DOE RESPONDENT (DEFENDANT)

BEFORE THE HONOURABLE ) _____ DAY, THE _____ DAY M________ JUSTICE ) OF __________________, 2007 IN CHAMBERS ) _________________, SASKATCHEWAN

ORDER Upon the application for counsel for the Defendant, John Doe, and upon hearing Counsel on

behalf of the Defendant, and upon having read the Affidavit of John Doe;

IT IS HEREBY ORDERED AND ADJUDGED:

(i) that the noting for default and default judgment in the within proceedings be set aside;

(ii) that the Writ of Execution, issued against the Defendant in the within action be withdrawn;

(iii) that the Defendant serve and file the Statement of Defence within 10 days of this Order; and

(iv) that the Plaintiff recover as against the Defendant the costs of and incidental to this application.

ISSUED at the City __________________, in the Province of Saskatchewan, this _____ day of _____________, A.D. 2007

Local Registrar

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